Comment is Free asked me to write a post on the blogger just jailed in California. It’s written with a UK audience in mind, thus the extra background:

The New York Times reports today what may be the first case of a blogger jailed by a US federal court for not handing over sources or source materials for a story – a case that will raise no end of questions about the rights, responsibilities, and protections of citizens acting as journalists.

Josh Wolf, a 24-year-old blogger and freelancer, had shot video of a San Francisco protest over the 2005 meeting of the G8 in Scotland. Violence ensued, a police officer’s skull was fractured, and authorities say a smoke bomb or firework was put under a police car. Wolf sold some of his video to local TV stations and put more up on his blog. Prosecutors demanded that Wolf testify before a grand jury and hand over everything he shot. Wolf refused and, yesterday, a federal judge found him in contempt and sent him to prison, where he could stay until the grand jury’s term expires next summer. Soon after, a post appeared on his blog asking for donations, thoughts, and prayers under the headline, “Josh is in jail and this is his mom”.

Wolf had argued that as a journalist he has a right to protect his sources. But the federal government recognizes no such right and efforts to pass a shield law in Congress have so far failed. That is how then-New York Times reporter Judith Miller landed in prison for not revealing her sources in the White House leak of a CIA officer’s name. And just yesterday, a federal appeals court ruled that the government could obtain phone records from Miller and a colleague in a separate case involving two Islamic charities the government says were tipped off to raids against them.

California does have a shield law that provides such protections to journalists – though debate is starting about who is a journalist. This was a crucial point in a recent case Apple opened against bloggers who’d scooped the company’s plans. The company dropped its complaint after an appeals judge ruled that bloggers do not “differ from a reporter or editor for a traditional business-oriented periodical”. The court said: “We decline the implicit invitation to embroil ourselves in questions of what constitutes ‘legitimate journalism.’ The shield law is intended to protect the gathering and dissemination of news, and that is what petitioners did here.”

Bloggers cheered.

But all these raises no end of Gordian questions:

• Should journalists have the right to protect their sources? Journalists accept as holy writ that we should. How else can we function watchdogging the governing and the powerful? How will whistleblowers and sources ever feel confident to come forward and share what they know?

• But if the internet allows anyone to publish, then who should get such protection? In Congress and the courts, arguments are ensuing over whether bloggers are journalists. I say that’s the wrong argument. Journalism isn’t defined by who makes it (and, in fact, trying to do that is a dangerous attempt to certify journalists, giving authorities the means to decertify them). Journalism is an act. I say that if one journalist’s act of reporting is covered, then all must be. And the journalists are not necessarily opposed. At a symposium on this topic, New York Times Executive Editor Bill Keller said: “The NY Times should be exceedingly humble about trying to decide who and who is not a journalist since we meet the test … and it feels like pulling up the ladder behind us.” Still, he wasn’t sure which bloggers should qualify.

• But what is to stop any witness to a crime from blogging and claiming to be a journalist, cutting off prosecutors from evidence needed to try criminals? Yes, what would stop Tony Soprano from blogging to claim the shield: ‘I’m what you call a citizen journalist. You godda problem wid dat?’

• And what are the responsibilities of journalists as citizens to report crime and aid the prosecution? I was in the habit of calling bloggers “citizen journalists” (I’ve since updated my blogictionary and now call this networked journalism because, as I said above, it’s dangerous to define journalism by who does it). Oftentimes, when I used the phrase “citizen journalist,” professional journalists would complain to me, “Well, we’re citizens, too!” Indeed, we are. So what is our responsibility to society in criminal matters? Some say Judith Miller witnessed a high crime in the White House and should have reported it to prosectuors. Others might say that if Wolf has evidence of a cop getting bashed and refuses to hand it over, he is doing nothing less than aiding and abetting the crime.

• But then on the other, other hand, if all journalists and all citizens who may witness news and thus perform acts of journalism now fear subpoena, contempt, and prison, what chill will this put on news reporting? The price of knowing becomes high. So in this case, instead of Tony Soprano becoming a blogger, we call become Tony Sopranos: hearing, seeing, and speaking no evil.

• Some argue that a line should be drawn at criminal activity, that a reporter should be shielded except in cases where a crime was committed. But that, too, falls apart. If, for example, the White House committed a crime in its National Security Agency phone snooping, would that then make a reporter’s sources vulnerable to exposure or the reporter still vulnerable to imprisonment?

Blogging was a helluva lot easier when all we wrote about was our cats.

re:
“But what is to stop any witness to a crime from blogging and claiming to be a journalist, cutting off prosecutors from evidence needed to try criminals?”

Of course it doesn’t have to be crime, but more commonly, a civil suit. And these questions that had been raised months ago when these stories first hit the fan. (You didn’t read the comment from “Rube” to your triumphalist Apple posting?) Glad you’re aboard now. This is why people like the idea of “standards” and “norms”– with privilege comes responsibility.

Note that public journalism– there are still some adherents around– would say that a reporter serves society before the story.

Incidentally, the appeals judge in the Apple v. Does case never referred to the defendents as bloggers in the ruling; he simply stated that what they were doing met the definition of journalism and Apple didn’t prove otherwise. Of more concern to you he wrote: “we have avoided the term
‘blog’ here because of its rapidly evolving and currently amorphous meaning.”

Could be a first assignment come September.

http://www.filmbuffonline.com Rich Drees

I would think that the mere act of selling some of the footage to local stations would automatically define Wolf as a journalist, albeit a freelance one.

Austin

Jeff,
Since the blogger in question is an eye witness, was the very person who shot the video, and openly wrote about the subject and distributed the video to other media, why would he refuse to testify in front of a Grand Jury?
By engaging in networked journalism isn’t he “testifying” in another way anyhow? What purpose is served by not testifying if he, in fact, may have witnessed a crime?
Now, on the other hand, if he was not an eye witness, did not shoot the video himself, and was reporting based on interviews that he conducted where his sources demanded anonymity in exchange for their point-of-view, I could understand.
If a journalist witnessed a murder, writes about it, and refuses to testify at trial – he/she should be jailed for contempt.
If a journalist is covering a story and interviews different people who may or may not have a criminal involvement, he/she should not be held in contempt for not revealing their sources. Journalists are not police officers or detectives and should not be compelled to do their work for them.
I guess to me the difference to me is that when a journalist is an eye witness, they are fair game to have testify at a criminal proceeding – like all of us other citizens are. When they are merely reporting a story and not eye witnesses to a crime, it is more than likely that the police will eventually have all of the same access to the sources that the journalist and, therefore, don’t need the journalist to hand them over (although that may seem the easier route for law enforcement).
I’m sure that I am missing many angles, but that’s my take on your article.

Austin

P.S. – With regard to Steve Clancy’s comment above. Mr. Cruz’s picture-taking was not actually interfering with the police’s ability to conduct the arrest, unless of course, they can prove that he was trying use the pictures to alert other possible suspects. In that case, he’s toast, and should be.

http://AsbestosDen.org Shawn Levasseur

I’m with Austin on this one, this isn’t even a case of a guy protecting any sources. No concern that future contacts will be scared away.

The theory behind shield laws is that they exist so that journalists can talk to sources confidentially. If the reporter’s access to the information in this case was merely the fact that he was there and running his camera, what’s the harm to journalism if he testifies?

If he was there because someone told him that some criminal activity was going to happen, then I think this guy deserves to be treated as an accomplice, not a journalist. Even Lawyer/Client privileges are null and void when the client is about to commit a crime.

I guess I’ve stumbled upon the line that should be drawn on Shield Laws (though I disagree with the idea of special rights for journalists in general). If you get information about a crime before it happens, one must testify. After the fact, the shield law kicks in.

Then again that line doesn’t handle the situation where the crime is the leaking of information, and the leak is the source being protected AND the crime being investigated.

If this is the case then everyone who sees an auto accident and doesn’t stop and identify themselves is now a potential felon?

How about people in businesses or government who are aware of something shady going on? Even if the crime is undetected have they an obligation to step forward and identify themselves as witnesses? What if, as is commonly the case, being a whistleblower will cause them harm?

The fact is that this area of law has never been properly settled and there is probably a good reason for this. There are just too many circumstances for a one-size-fits-all rule.

Despite my strong disagreements with Jeff on the Israel question (and I’m still chaffing at his anti-Semitism insinuations – or were they outright accusations?), I very much like the tone of this one in that these are difficult questions and any given answer brings forth its own set of problems.

I think the comment regarding when is someone compelled to testify gets to the crux of the problem.

http://jonnygoldstein.com Jonny Goldstein

Whatever the legal and moral questions here, I think it’s safe to say Josh can be designated a journalist. He’s just out of college, and while he was there he wrote for the student newspaper. Since graduating in addition to his blogging and vlogging, he has sold footage to MSM outlets and published articles for the Haight Ashbury Beat (yeah I hear you snickering, but it looks like a legit community paper). The SF Chronicle and the NY Times both label him a journalist in recent articles. Although there’s no official designation of who is a journo, by an reasonable standard, it seems to me Josh qualifies. It might be a tougher call if he was just a guy with a blog who wrote about what kind of cereal he had for breakfast, but that’s not what he is.

For the record, I met Josh at Vloggercon 2006 and he seemed like an earnest, idealistic, nice guy. Not that that is required to be designated a journalist…

http://www.mythusmageopines.com/wp Alan Kellogg

Frankly, Josh’s status as a journalist is not relevant here. In this case Josh has no sources to protect, he’s just being a mule. He’s also intervering with an investigation and needs to cut it out.

If you’re a friend of Josh, please pass this message on…

Josh, if you were a kid of mine, I’d whack you upside the head with a clue stick and tell you to get some sense. You’re defending no one and upholding nothing. All the police want is the video you shot. If there happens to be people on the video you’d rather the police didn’t see, then you shouldn’t have made footage from the video available for sale. Either all of a record is privileged, or none of it is. So stop being such a cat.

http://www.gravierhouse.com Steve Herman

I tend to agree with Mr. Kellogg, but it depends what is on the tape. If there is just raw footage of an incident, it’s nothing more than “evidence” (which can obviously be subpoenaed, etc). If, at some point, he interviews a witness who requests and is granted anonymity, then that part of the tape could, perhaps, be claimed as “privileged”. (Incidentally, there is some interesting discussion of the Valerie Plame affair, on a lightly different note, on http://www.gravierhouse.com. But, in any event:) If I were the Judge, I would compel him to submit the tape to a Special Master, Under Seal, bound by confidentiality, etc., to review the tape and issue a report. This is what happens with attorney-client material all of the time. To the extent journalists have a privilege, (and I think they should – whether “bloggers” or not, as long as what they are practicing is truly “journalism”), I don’t see why it should be any stronger than the attorney-client privilege.

http://billhobbs.com Bill Hobbs

As I said in a lengthy post on my blog, Wolf appears to be claiming “journalistic privilege” in order to protect his ideological friends, rather than to protect “sources.”

freelance journalist and blogger Josh Wolf, 24, is asserting he has a right as a journalist to protect his sources. I’d agree with him on that. But video isn’t “sources.” It’s video. I think he should turn it over.
…
The San Francisco Chronicle reports that Wolf “describes himself on his Web site as an activist and anarchist.”

In other words, Wolf isn’t really a “freelance journalist and blogger” trying to protect his sources – he’s trying to protect his fellow anarchists.
…
Jeff Jarvis explores the ramifications of the Wolf case, though he blindly accepts that Wolf is a “journalist” trying to protect his sources rather than an anarchist trying to protect his friends. In essence, Wolf shot video of his ideological friends committing possible crimes, and now is claiming to have a journalists’ right to conceal the evidence.

The journalist status is relevant if on appeal the court finds that there is no federal jurisdiction, since California has a state shield law that allows journo the right to not give unpublished material up. And the claim for federal jurisdiction seems questionable in this case.

To clarify, I’m not a friend of Josh’s. I met him once at a convention. I have no special way to get him a message. Based on what I’ve read so far, I support him in his efforts to maintain possession of his unpubished material under California state law. I don’t think this should be a federal case. I guess the lawyers will have to work this one out.

Austin

In response to Robert Feinman’s comment above:

This is an interesting question. In all of the examples you pose, no witnesses are coming forward and they cannot necessarily be identified.

The blogger in question wrote about and distributed video of the event, thereby announcing – of his own free will – that he was a witness to the goings-on. It is possible that, under scrutiny, he won’t have anyhting of value to add to the investigation.

Our criminal justice system has the power to subpoena individuals and compel them to testify in court.

I would suggest that this individual had a choice whether to write about or distribute a video of the event. By choosing to do so, he announced to the world that he was present and may have witnessed a crime. Therefore, he has no reason not to appear before the grand jury and should be held in contempt if he does not. I have not seen how compelling this individual to testify about something he was an eyewitness to and, moreover, openly proclaimed he was an eyewitness to, damages his journalistic integrity or journalism as a whole.

Whistleblowers are usually people trying to right a wrong but want to do so without broadcasting what they know or what they are doing to the entire world in fear of retaliation. When you’re selling your videos and writing about something online, you’re obviously not trying very hard to keep things quiet or stay out of the public eye – you’re intentionally doing the opposite.

Austin

http://www.mythusmageopines.com/wp Alan Kellogg

Thanks to Steve Herman another consideration arises. Can a person at a public event, speaking in public, have a reasonable expectation of privacy? I’d say no, he doesn’t have a reasonable expectation of privacy. He’s in public for crying out loud. However, thanks to some ill considered legal decisions people have come to expect privacy even when they are in full view of the whole damn world.

Privacy comes not when you demand it, but when you take the steps necessary to ensure no one can hear what you’re saying other than your intended audience. In your house, that’s private. On the street? That’s not private.

Remember, it’s the reasonable expectation of privacy. Josh interviewed people on the street, then those interviews are public and cannot be held in confidence